It comes as no surprise that the cost of litigation these days is rising along with just about everything else. Parties to litigation simply factor those costs into the strategic direction of each case and act accordingly. However, oftentimes, nonparties have information that is relevant to a case and, therefore, find themselves dragged into litigation at the wrong end of a subpoena. In fact, Federal Rule of Civil Procedure 45 makes it relatively easy to subpoena information from nonparties. Obviously, once the subpoena is received it cannot be ignored and the cost to respond can be significant. Luckily, a recent letter ruling by the Delaware Bankruptcy Court in Mesabi Metallics v. Cleveland-Cliffs, 2022 Bankr. LEXIS 1450 (Bankr. D. Del. May 23, 2022), may provide some relief to a nonparty, and change a party’s cost-benefit analysis when deciding whether to issue a third party subpoena.

In Mesabi, the plaintiff served a subpoena on a nonparty pursuant to Federal Rule of Civil Procedure 45, requesting documents believed to be relevant to its claims against the defendant. The plaintiff filed a motion to compel compliance with the subpoena, and the third party filed a motion for a protective order, declaring that it had already spent more than $140,000 to  comply.

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